72 Neb. 378 | Neb. | 1904
This is an action to foreclose a real estate mortgage, and is before this court for a second review, this time on a petition in error by plaintiff to set aside a judgment for the defendant entered in the court below. The opinion in this case on the first hearing is found in 64 Neb,
When the cause was remanded for a new trial, plaintiff filed an amended petition in the court below in which it was alleged, in substance, that the note was originally given without the word “gold” therein, but that, after the execution and delivery of the note and mortgage, some one to the plaintiff and the Lombard Investment Company unknown, without any authority and without the instructions or the concurrence of the Lombard Investment Company, or the plaintiff, accidently or inadvertently stamped the word “gold” therein. The prayer of the amended petition was that the contract -as evidenced by the mortgage and note, with the word “gold” omitted, be enforced. . Defendant filed a motion to ' strike the amended pleading from the files, for the reason that it Avas a sham pleading, and in conflict with and contradictory to the confessions made in the reply of the plaintiff
Three propositions are involved in this controversy, and but three are determined in our former opinion, and are now governed by the rule of “the law of the case.” The first of these is that the alteration of the instrument by inserting the word “gold” before dollars was a material alteration; the second is that the defendant is not estopped from pleading this defense by paying without objection the nine interest coupons attached to the note, which contained this condition; third, that the alteration was made» without defendant’s knowledge and after the execution of the note and mortgage.
Plaintiff acquiesced in the questions of law and of fact determined by this court at the first hearing of the cause and filed an amended petition, the substance of which has already been set out in this opinion, in which she, however, denied any knowledge of herself or her assignor, the Lombard Investment Company, concerning the alteration and mutilation of the note and mortgage. We do not think the amended petition was a departure in any sense from the* original cause of action. The original cause was instituted for the purpose of foreclosing a mortgage, securing a note and one coupon on certain lots situated in the city of Lincoln, Nebraska. The original petition was the ordinary statutory petition for the foreclosure of a note and mortgage. The amended petition aims at the same end, but alleges the existence of facts, probably unknown to plaintiff at the time the original petition was filed, which tend to
It therefore seems clear that, under the liberal rule of our code permitting amendments in furtherance of justice, the trial court should have permitted the filing of this petition on terms as to payment of costs Avhich he might have deemed fair and equitable, unless the petition wholly failed to state a cause of action. In vícav of the modern rule that the alteration of a written contract by a stranger without the privity or consent of the parties interested will not avoid the contract Avhere the contents of the same can bo ascertained, we think the petition stated a good cause of action. This rule is sustained by the holdings in Waring v. Smyth, 2 Barb. Ch. (N. Y.) 119; Drum v. Drum, 133 Mass. 566; Fuller v. Green, 64 Wis. 159, and is fully recognized in this state in Walton Plow Co. v. Campbell, 35 Neb. 173, and Avas commented upon with favor by Day, C., in the first opinion rendered in the instant case.
It is therefore recommended that the judgment of the district court be reversed and the cause remanded for further proceedings according to law.
For the reasons státed in the foregoing
Reversed.